In re Oakley

The evidence is sufficient to warrant the master’s report of the amount due to the executors of Brackett as against the administrators of Richard Dean. The power of attorney executed by Deane to Brackett is a power coupled with an interest and a trust is, at the same time, created for the purposes therein specified. It has reference to the security and payment of any monies then due when the bond and mortgage should be paid off.

*481The power operates as an assignment of his interest in the bond and mortgage for the purpose of securing any debt or demand then existing in favor of Brackett, as well as any that might afterwards accrue to him, and also for the purpose of paying the specific debts owing by him to Regulus and Ritchie when the money should be received on the bond and mortgage from the church. A court of equity, under such circumstances, cannot permit the statute of limitations to be set up in bar of the demands. Nor is the presumption of payment to be raised. A means of payment being provided, through the medium of the power, out of the mortgage, the creditors might wait, relying upon the security, until the mortgage should be paid offj without incurring the danger of presumption from the lapse of time. There is enough in this case to repel the presumption of payment. The burthen of proof is upon Dean and his representatives to show payment, provided payment of these demands has been made.

With respect to the note which Regulus held for two hundred dollars and not now produced, it may well be supposed it was given up when the power of attorney was executed—there would be no necessity for holding the note any longer. The power provides for the payment of a specific amount, with interest, if required; and it may be considered a substituted security and the note no longer of any consequence. Hence, no presumption of payment of the note is to' be drawn from the circumstance that this note is not now produced. For these reasons, 1 am of opinion the exceptions taken by the administrators of Dean must be overruled.

As to the one exception taken by the Church in respect to the allowance to Jennings, as assignee of Grace Merrick, of forty-five dollars and seventy-five cents: this is well taken. Jennings, being a trustee of the Church and having bought up this demand for twenty dollars, which is the consideration expressed in the assignment, can charge the Church no more than he paid for it. Any benefit from this bargain belongs to the Church, in whose behalf he must be considered as having acted. This exception is allowed..